E-Discovery Mediation and Litigation Planning

As an attorney shifting her career toward mediation, I am always on the lookout for training opportunities to further my skill set and knowledge base. I have previous experience with litigation and electronically-stored information, including participating in a half-dozen large-scale cases where tens of thousands of electronic documents had to be reviewed, tagged, and logged. So, I was thrilled to link my interest in mediation and my previous experience by attending a recent two-day training program offered by the American College of e-Neutrals on the use of mediation to resolve electronic discovery, or e-Discovery, disputes.

As many familiar with court procedure know, discovery can take a lot of time, both for judges and for parties. The advent of e-Discovery has driven the costs of discovery up significantly and made the discovery process more complicated by providing large mines (or possibly “clouds”) of information, beyond the limits of traditional paper files, to be searched, including hard drives, e-mail servers and other electronic devices. It is a brave new world where deletion isn’t necessarily permanent and where terms like “metadata” and “native format” can be confusing for clients and attorneys alike. When attorneys fight about document requests and bring motions to compel, it further ramps up the costs of litigation (and often the frustration of the clients).

The use of e-Discovery mediation can make the court process flow more efficiently for the parties and their counsels, particularly if it is used at the beginning of the case. Although the area is new, one model being advanced is for the court to refer the parties to e-Discovery mediation with a court-affiliated mediator, or e-Neutral.

E-Discovery mediation allows parties to discuss their discovery expectations to avoid confusion and the need for motions to compel. Mediation for e-Discovery can be used early on in the case to help parties figure out parameters for searches including: time limits; the people whose data should be searched; the e-Discovery programs to be used; search terms; requirements for a privilege log; guidelines for preservation, and much more.

A major benefit of e-Discovery mediation is that the parties can bring other personnel with valuable information, such as IT staff, into the mediation process under a protective umbrella of confidentiality. Computer technology experts tend to know a lot more about how data is stored than attorneys, and their input in the early stages can help prevent costly mistakes in the preservation and production processes. In large-scale litigation, it is highly beneficial to have attorneys, IT personnel, and executive teams on the same page regarding:

what information is retained;

how it is retained;

how long it is retained; and

where it is retained.

The facilitation of e-Neutrals can help parties agree on discovery, giving the parties the satisfaction of participating in the decision-making and lessening the chance that either party will be sanctioned for failure to produce or preserve electronically-stored information. The e-Neutral would ideally have training in this specific type of training and would be able to help the parties decide the e-Discovery parameters and discuss any issues. If the parties have a subsequent disagreement as the case proceeds, an e-Neutral can help facilitate a resolution.

With the use of mediation in e-Discovery, attorneys can help protect their clients and themselves, freeing up time and energy to delve into the merits of the case. Using mediation to resolve e-Discovery disputes can also help judges manage their caseloads and create greater efficiencies in the judicial system. One point the training drove home is the consequences for attorneys who do not proceed with caution and a detailed discovery plan once there is even the reasonable anticipation of litigation [See the Zubalake v. UBS Warburg cases, particularly Zubalake V, 2004 WL 1620866 (S.D.N.Y. July 20, 2004)]. Having worked on extensive document review projects, I can attest that the process is smoother and ultimately cheaper if parameters are laid out in the beginning and not cobbled together as the discovery process proceeds. The cost of backing up tapes can be cheap; the cost of restoring tapes after they have been deleted is likely to be exponentially more expensive. No one wants to be in the sticky situation of telling your client that they have to spend hundreds of thousands of dollars to restore data that could have been cheaply preserved in the first place. The clients will be even less impressed if other sanctions like fines, issue preclusion, evidence preclusion, an adverse inference jury instruction, or dismissal are imposed. Involving IT personnel in an early e-Discovery mediation will allow all the parties not only to be better informed about practical technological discovery questions but also to develop a joint e-Discovery plan that meets both sides’ needs.

Jennifer S. LaDuke has worked in the conflict resolution field for over a decade, honing her skills in both the private practice and administrative arenas. Currently she volunteers at Resolution Systems Institute and serves as a part-time Legal Advisor to the Illinois Racing Board. She has been trained in general and divorce mediation and is also an e-Neutral.